It's worth noting that the music industry can hardly have expected PRO licensees to have known that they were only fractionally licensing songs after all, ASCAP only started listing fractional ownership information in its public database in November 2015 ( after the Department began its inquiry into the fractional vs. This service saves music users the immense time and expense of contacting each songwriter or composer for permission to play their music publicly.” What the Department is doing, in effect, is reading the plain language of the consent decrees in combination with taking the PROs at their word - not a particularly revolutionary act. According to ASCAP’s licensing FAQ, “ne of the greatest advantages of the ASCAP license is that it gives you the right to perform ANY or ALL of the millions of the musical works in our repertory… And with one license fee, ASCAP saves you the time, expense, and burden of contacting thousands of copyright owners.” Similarly, “ Music Licenses offer copyright clearance to use all of the works in the BMI repertoire in a variety of ways. First, the terms of the consent decrees under which the PROs operate support the idea of 100% licensing: ASCAP’s decree requires it to “grant to any music user making a written request therefore a non-exclusive license to perform all of the works in the ASCAP repertory.” More to the point, both ASCAP and BMI describe their licenses on their websites in terms akin to 100% licensing. The publishers appear to have a reasonable position, until you look past the overheated language. If a song in the catalog has additional authors who are not members of the PRO, licensees are responsible for identifying, contacting, and getting permission from the non-member authors before they can perform it - so called “fractional licensing.” According to the Department, the PRO licenses include these songs too, and users don’t need to get permission from co-authors who aren’t members of the PRO - this has been called “100% licensing.” The music industry claims that the PROs have never offered 100% licensing, but rather only license the percentages of songs owned by their members, meaning that licensees only get permission to play songs in the PRO catalog whose authors are all members of that PRO. The catch is that PRO catalogs include many songs where there are multiple authors, and not all of the authors are members of the PRO. So what exactly is everyone up in arms about, and is it as unprecedented and unconscionable as the industry reaction would lead you to believe? The controversy hinges on a seemingly innocuous question: What do you get when you acquire a PRO license? The Department has reportedly concluded that based on the PRO consent decrees and current industry practice and understanding, licensees get permission to play any song in the PRO’s catalog (also referred to as the PRO’s “repertory” or ”repertoire”). ASCAP and BMI offer licenses not just to major digital and terrestrial platforms, but to a whole range of American enterprises and institutions - the PRO websites highlight restaurants, bars, yoga studios, churches, fitness clubs, app developers, and even local governments, among others, as potential licensees. The latest addition to a steady stream of industry complaints claims that the Department’s decision will “ up the media conglomerates at the expense of the entire music industry.” Looking beyond the rich irony that the two largest music publishers in the United States, Sony/ATV and Universal Music Publishing, are themselves divisions of large media conglomerates (Sony Corporation and Vivendi SA, respectively), the statement diminishes the range of businesses that rely on PRO licenses and contribute to the music economy. A closer look at Department’s reported conclusions suggests that the music industry response is overblown. The music publishing industry has reacted in colorful and apocalyptic terms in its response to the leak detailing the expected conclusion of the Department of Justice’s consent decree review, in which the agency extensively examined the antitrust settlements binding the two largest performance rights organizations (PROs) in the nation, ASCAP and BMI.
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